Judge Sullivan's Appeal for 'En Banc' Hearing Has Good Chance at Success

Judge Emmet Sullivan's refusal to abide by the D.C. Circuit Court's decision to dismiss the Flynn case and subsequent appeal for an "en banc" decision is not without precedent. 

Flying under the radar is the role that Judge Sullivan has played in simultaneously overseeing both the Michael Flynn case and a major lawsuit against Trump.  In Blumenthal v. Trump, Jerry Nadler, who oversaw the House impeachment of Trump, and some 200 congressional Democrats sought to sue the president according to the obscure "Emoluments Clause."  The basic contention is that Trump is in a compromising position because his business holdings occasionally receive funding or contracts from foreign entities, much like any other elected official with business interests in foreign countries. 

As Matthew Walther noted in The Week, "The [Emoluments C]lause has never given rise to any legal cases of note, and it has never been defined or even meaningfully addressed by the Supreme Court."  But Sullivan was willing to take the first shot at it by ultimately ruling the suit as constitutionally valid, while admitting that "there is only one other judicial opinion interpreting the Clause."  Sullivan relied entirely upon the briefs and counsel provided him by Democrats, as he has also done in the Flynn case, especially by bringing in retired judge Gleeson and inviting briefs from activist lawyers and prosecutors.  

As in the Flynn case, the D.C. Circuit Court intervened to dismiss the case because Sullivan "did not adequately address ... the separation of powers issues present in a lawsuit brought by members of the Legislative Branch against the President of the United States."  The Circuit Court also protested that Sullivan had "abused" his discretion in attempting to minimize and reject the validity of Trump's appeal.  While Sullivan ultimately lost the battle on this case, the court documents demonstrate that he repeatedly attempted to push through what is otherwise a defunct and never-before-prosecuted Emoluments Clause. 

The story doesn't end there.  There are two other lawsuits invoking the Emoluments Clause that have been brought against Trump: CREW v. Trump, initiated by the hyper-partisan David Brock, and D.C. and Maryland v. Trump, filed by two progressive attorneys general who have attempted to sue the president in no fewer than a dozen cases. 

Both cases were originally dismissed by appeals courts on the grounds that Congress has no need of the Judicial Branch to enforce its own law.  However, they were then later reinstated, even though it was conceded that there was "no history" of opinions to aid their decision.

In fact, the D.C. Circuit's decision to reverse the dismissal of D.C. and Maryland v. Trump was done by appealing to the rare "en banc" decision, the very same appeal Judge Sullivan has now sought in the Flynn trial..  An "en banc" appeal allows for a case to be reheard by the entire court's bench rather than only the three appointed judges.  If the majority of the bench decides against the original ruling of the three-person panel, the decision is reversed.

It is worth noting that while the D.C. Circuit has averaged fewer than three en banc cases per year over the last 20 years, it has exercised this rule four separate times in cases related to President Trump.  To put it more simply, out of the eleven cases that this court has heard en banc since Trump took office, four of them are cases against Trump's or his administration.  The Flynn case would make the fifth.  For comparison, during the entire tenure of Obama, there were no en banc hearings by the D.C. Circuit that involved Obama or his administration.

But even if Sullivan's appeal did not eventually succeed in overturning the dismissal of the Flynn case, it is likely that he would count it a victory if he were simply able to convince the court to have an "en banc" hearing.  This would further delay the end of the Flynn case by weeks, if not months.  And considering that Trump is seriously considering inviting Flynn back into the Trump administration, this could spell imminent danger for many intelligence officials who have not done things "by the book."

In fact, before his arrest, Flynn had openly advocated for the replacement of the current intelligence software with the highly innovative program Palantir.  This program is "capable of building comprehensive models of activity to detect suspicious anomalies" and is "the combination of every analytical tool you could ever dream of."  Such a system could very likely uncover the myriad of anomalies committed under the Obama administration, including but not limited to the Russia collusion hoax, Spygate, unlawful/unauthorized unmasking requests, the IRS scandal, etc.  If so, that's a serious "uh-oh" for the whole administration, which has regularly been accused of abusing intelligence data, among many other abuses. 

Thus, the goal for Judge Sullivan and his growing number of comrades is to delay the dismissal of the trial long enough to eventually see out a Biden presidency.  If Flynn gets anywhere near the White House before the election, or if Trump gets re-elected and brings in Flynn, this most likely is a doom-and-gloom scenario for many big-time hitters in Washington. 

After all, Flynn is no rookie when it comes to collecting intelligence data.  In fact, he is credited with being the primary architect for "revolutionizing the way that the clandestine arm of the military, the Joint Special Operations Command (jsoc), undertook the killing and capture of suspected terrorists and insurgents in war zones."  So significant were his contributions that Flynn was appointed the director of the Defense Intelligence Agency in 2012, which would have placed him in charge of all U.S. military and defense intelligence.  Suffice it to say, if Flynn is at all interested in getting to the bottom of the Obama-era abuses, his experience and credentials are likely to set him up for success. 

But this will never happen if Sullivan can help it.  The recent number of overrulings and en banc hearings by the D.C. Circuit has almost certainly motivated Sullivan to so brazenly assume the unconstitutional role of both judge and prosecutor in refusing to dismiss the Flynn case.  With far more than one thousand "former federal prosecutors and former high-ranking Justice Department officials" supporting his cause, at the very least, Sullivan is ensured that, just like all the other corrupt bureaucrats, he'll never face any consequences for his actions.

Often missed in all of this is that Sullivan was not originally assigned to the case.  Rather, Sullivan was "randomly reassigned" to replace Judge Rudolph Contreras just eight days into the case.  This random reassignment is even more suspicious in light of his appointment to and handling of the Trump lawsuit. 

The previous judge didn't fare any better, considering that the The Conservative Treehouse has revealed that Judge Contreras, the judge who originally accepted Flynn's guilty plea, is good friends with former FBI agent Peter Strzok, who interviewed Flynn and oversaw the investigation.  One begins to wonder whether the appointments of any of the judges regarding the entire Mueller probe is at all random. 

As for Sullivan playing both judge and prosecutor in the Flynn case, he was careful in the Trump suit to note,  "The Court is mindful that 'the separation-of-powers doctrine requires that a branch not impair another in the performance of its constitutional duties.'"  Touché, Judge Sullivan!

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